Mass. House ready to try legislating from home

BOSTON -- With most members urged to participate remotely and under temporary emergency rules that leadership hopes will be adopted Wednesday, formal House sessions could become scripted affairs with the speaker recognizing members from pre-arranged "support" and "oppose" lists.

The historic adoption of the temporary rules -- which might be imperiled by objections from Republican members -- is intended to allow the House to resume legislating while adhering to principles of social distancing by allowing representatives to participate and vote by phone conference, including specific provisions for a remote annual budget session.

House Speaker Robert DeLeo, Rules Committee Chairman Rep. William Galvin and other House leaders presented the proposed rules package to Democrats during a caucus conference call early Tuesday afternoon and heard at least some pushback from Democrats. Rep. Kate Hogan, who has been among the group leading the House's COVID-19 response efforts, said later Tuesday afternoon that she and House leadership "continue to work with the Democratic caucus to craft the rules for moving forward in the pandemic."

One representative said Tuesday afternoon that members were expecting an updated version of the emergency rules proposal would be released around 7 p.m. Tuesday.

The House has said its plan is to adopt the rules during an informal session Wednesday -- a vote that will require the acquiescence of all members -- before convening the first formal session in nearly two months Thursday.

But House Minority Leader Brad Jones told the News Service on Tuesday that his caucus will not go along with the adoption of the rules as proposed by DeLeo and his leadership team.

"Based on the concerns I have, and based on the concerns I've heard from other members of my caucus, the order as presented moving forward is a big problem," Jones said. "Which obviously means we wouldn't let it go forward."

If the Republicans do delay adoption of rules, it could delay a planned vote on a bill (H 4593) that Republican Gov. Charlie Baker filed and said is needed to "protect the state's budgetary and cash balances during the ongoing emergency" and "to relieve pressure on the taxpayers of Massachusetts." DeLeo told representatives to plan for a vote on that bill during a formal session Thursday.

The minority leader said Republican concerns -- he mentioned a 10 a.m. deadline to sign up to debate, a limit on how many times a member can be recognized, and a change to the threshold needed to get a roll call vote -- "have to be addressed, or we're not going to be able to come to some consensus on an order that allows us to proceed remotely."

"We need to structure this in a way that achieves the goal, which is allowing us to get it done, being fair to the membership," Jones said. "But then recognize that we do it in a way that doesn't inspire members, or necessitate members to say 'the only way I can really feel like I can participate is by being there.' "

Asked to respond to Jones' comments, Hogan told the News Service in a statement that "you would have to ask him why the Republicans are failing to move the Governor's agenda forward in regard to the RANs item." The bill she referenced has been in the Democrat-controlled Ways and Means Committee since March 27 and Democrats must vote to release it before the rest of the House could consider it.

How It Would Work

A draft of the 11-page rules package begins with a declaration "that a state of emergency exists within the House of Representatives" and that the temporary rules are to remain in effect until the House adopts an order declaring its state of emergency to be over or until the end of the session next January.

The keys to the House's plan are the eight representatives tapped by DeLeo, in consultation with the minority leader, to serve as division monitors. The House floor is divided into four sections of seats, or divisions. Two monitors are supposed be appointed for each division and their roles typically involve distributing information to colleagues and counting how many people in their division rise for standing votes.

Here's roughly how a session would work under the proposed rules: By 5 p.m. Friday the week before a planned formal session, the speaker would email all representatives with specific instructions for remote access. All bills on the agenda for a formal session must be made available to representatives and the public by noon the day before the session, and representatives would have until 5 p.m. that same day to file amendments with the House clerk.

Any member who wishes to speak in favor of or in opposition to any bill or amendment must notify their division monitor by 10 a.m. on the day of a formal session -- which, under the rules, could not begin earlier than 10 a.m. -- with the bill or amendment they want to address and whether they support or oppose it.

Each division monitor would then compile the "support" and "oppose" lists in the order that they heard from their colleagues and submit their lists to the speaker. In consultation with the minority leader, the speaker would then assemble master "support" and "oppose" lists, which would be emailed to all representatives before the session.

Those master lists "shall be the order in which members are recognized during the debate," the rules declare, and the speaker is instructed to try to alternate between speakers in support and those opposed to the topic under consideration.

"There are rules that we've set up in order to preserve all of the ways that we do business, but also recognizing that we're doing business over a conference line," Hogan told the News Service on Tuesday. "In order to do it in this fashion ... we're going to need people to have a little bit of patience in the way that they're able to speak but all of the representatives will be able to speak."

Jones said the 10 a.m. deadline to register for debate will prove challenging for some members along with the limit to one chance at oral arguments.

"So if you ask a question that nobody answers, you can't revisit the fact and say nobody answered my question," Jones said. "You're sort of just done at that point."

For voice votes that the presiding officer cannot determine the outcome of based on the sound of voices coming through speakers, the division monitors would get a count of those voting in the affirmative and in the negative from their division and report that to the speaker.

"A Member participating remotely who does not notify their respective division monitor of their desire to vote in the negative shall be deemed to have voted in the affirmative," the rules say.

For roll call votes, each division monitor will call the roll for their division in alphabetical order, record the votes on a form, sign the form and hand it in to the House clerk. The clerk will then put each representative's vote into the House's roll call machine, and alert the speaker when all votes are in. The speaker will then close the vote, announce the result and display the tally on the House Chamber's two voting boards.

The proposal from House leadership would also raise the threshold to secure a roll call vote from 10 to 25 percent (another way to put it: 15 members to 40 members, according to Jones) of the House members participating.

"That's obviously more challenging because you can't actually see people," Jones said. "That's a huge problem."

Rep. Mike Connolly, a Democrat, echoed Jones' concern about the threshold for a roll call vote after Tuesday's caucus.

"In today's House Democratic Caucus, I expressed my strong desire to have the proposed Emergency Rule 7(c) be revised so as to maintain the current threshold of 10% whenever a Member wishes to ask for a call of the yeas and nays," he said. Connolly said remote voting is "a remarkable and unprecedented step and totally necessary in response to this ongoing public health emergency" but said he is "deeply concerned" about raising the threshold for a roll call vote.

DeLeo was not made available after Tuesday's caucus to respond to the concerns raised by Jones or Connolly.

After the caucus, Connolly said there was a "very good dialogue" and that he was "hopeful changes will be made to the proposal, particularly with respect to the roll call threshold."

If members are participating remotely, the House's temporary rules would require a roll call vote for any bill to be enacted.

Under the rules, the member presiding as speaker must be physically present in the House Chamber. The minority leader, Ways and Means Committee chair, ranking Republican on Ways and Means, the chair and ranking Republican of any committee reporting a bill to the House, and the speaker's hand-picked division monitors are also allowed to be present in the House Chamber.

"All other members are strongly encouraged to participate remotely in a formal session," the rules state. Others, like court officers and clerks, will be allowed on the floor if the speaker and minority leader agree they are essential to the House's operation.

Rep. Paul Donato, who said he plans to preside over Thursday's session, said a legislator cannot be barred from entering the chamber Thursday. However, anyone on the floor must wear a face mask pursuant to an advisory DeLeo sent out earlier this month.

Anyone physically present during a formal session must also adhere to social distancing guidelines by keeping "a 6-foot buffer zone between any Members, officers and employees physically present in the House Chamber." Any representative, officer or employee who does not keep their distance "shall be removed from the House Chamber" under the rules.

Members of the public will have to watch the session on the House's livestream since the State House has been closed to the public since March 17.

The House's proposal also waives a section of the standing rules that gives members of the press the right to observe sessions from the reporters' gallery, though it is unclear whether the House intends to bar reporters from observing remote sessions from the chamber.

The Budget Process

When it comes to the fiscal year 2021 budget, the rules package would require that the House Ways and Means Committee report the fiscal year 2021 budget out by July 1, 2020, which is the first day of the new fiscal year. The rules package also includes much of the language that is typically adopted as part of an order governing budget debate, like specific instructions for a consolidated amendment process.

On Tuesday morning, an official from the Department of Elementary and Secondary Education said the department has "had some informal discussions" with the House and Senate Ways and Means Committees, and raised the possibility of a joint budget proposal coming from both the House and Senate committees, rather than individual versions from each branch.

Hogan deferred questions about the eventual fiscal year 2021 budget process to the Ways and Means Committee.

"Rules and orders were put into place so there will be flexibility," Hogan said of the provisions incuded in the proposed emergency rules. "So that when House Ways and Means and the speaker's office decide on how and when they are going to move forward in discussions with chairs and members, that we will be able to have the rules and the order necessary to move forward with it."

Weeks of Development

The House's COVID-19 working group met for the first time on March 12 and started to look for a solution that could bring back recorded voting and debate. Hogan said the group was driven by three guiding principles: security and health of the House and its members, the ability to have uniform access to remote formal sessions, and security and reliability of the process in order to consider and adopt legislation.

The working group considered a number of different methods for conducting legislative business during the pandemic and looked to other states like Pennsylvania, New York, and New Jersey for ideas. The conference call system proved to be the safest in the eyes of Hogan and other members of the working group, she said.

"When we realized that each member has a phone each, each member is able to communicate by phone and we felt that if we were able to use the phone as a means by which we communicated, it would provide everyone a voice," Hogan said.

Off-the-shelf systems like Zoom, Hogan said, have not been extensively tested under the pressure the Legislature faces. Using them for the first time could prove to be difficult and dangerous in terms of cybersecurity, Hogan said.

The Senate is still working on coming up with its own plan for remote participation and the House could take that leap first, if the temporary rules are approved. Exactly how legislating-from-home works remains to be seen.

"I don't think it's going to be weird but it's going to certainly be different and going to require at least the indulgence, not only of the members, but those of us who are in the background trying to put these things together," Donato said Monday. "Whoever is going to be there from the speaker's office, and then whoever's there from the from the clerk's office, we're going to need some, at least, guidance in the beginning."